The Administrative Court has declared that the proposed residence test for civil legal aid is discriminatory and unlawful, following a successful judicial review challenge against the Secretary of State for Justice. The case was brought by the Public Law Project, a national legal charity that promotes access to justice, on the basis that the residence test would, if implemented, violate fundamental constitutional rights guaranteed by the common law and the European Convention on Human Rights, as incorporated into UK law by the Human Rights Act 1998.

Lord Justice Moses, delivering the unanimous leading judgment of the three-judge court, found first that the secondary legislation intended by the government to introduce the residence test is ultra vires (beyond legal authority) as the measure is not within the scope and purpose of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), and second that the test amounts to unlawful and unjustifiable discrimination in breach of the common law and the Human Rights Act.

It was ‘beyond question that the introduction of such a test is discriminatory’, according to the court; indeed, that was the ‘declared purpose’ of the proposal.

The Secretary of State for Justice, Chris Grayling MP, had nevertheless argued that the discriminatory effect of the test is justified because it would ensure that limited public resources are targeted at those with a ‘strong connection’ to the UK. However, the court held that ‘the possibility of saving expense is not an aim which can be legitimately relied upon to justify discrimination’. The court also noted that the Public Law Project had provided ‘substantial evidence that the extent of the savings is unknown, cannot be assessed and may be illusory.

Reliance on public prejudice
Grayling also sought to link the proposal to improving public confidence in the legal aid system. This argument was dismissed by the court. ‘In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice.’

In other words, pandering to a xenophobic, divisive strain of anti-immigrant opinion will not persuade the judiciary to permit the executive to disregard the rule of law, a fundamental component of which is equality before the law. Lord Justice Moses cited Lord Scarman’s affirmation in an earlier case that ‘every person within the jurisdiction enjoys the equal protection of our laws’.

The government had intended to bring the residence test into force on August 4 2014, but the inevitable result of the court’s decision is that the draft secondary legislation currently before Parliament would be incompatible with the common law and the Human Rights Act. The statutory instrument containing the residence test was approved by the House of Commons last week, before the outcome of this judicial review, and is due to be debated by the House of Lords on 21 July 2014.

Indefensible measure
Peers have been urged by non-governmental organisations and charities to use a ‘fatal motion’ to defeat the residence test in the event that the proposal is not withdrawn by the government. Groups and individuals concerned to ensure that the measure is not introduced in defiance of the Administrative Court judgment will lobby peers over the next week. Young Legal Aid Lawyers will continue its campaign against the residence test ahead of the House of Lords vote.

The proposed residence test would apply to all civil (i.e. non-criminal) legal aid cases and, subject to very limited exceptions, would require applicants to demonstrate both that they are currently lawfully resident in the UK and that they have been lawfully resident for a continuous period of 12 months at any point in the past. It would exclude from the civil legal aid scheme recent migrants and their children, people resident outside the UK, as well as those in the UK who are unable to prove lawful residence for practical reasons, including homeless people.

Following the Transforming Legal Aid consultation in April 2013, the government stated that ‘individuals should in principle have a strong connection to the UK in order to benefit from the civil legal aid scheme’ and that the residence test would demonstrate whether an individual had such a strong connection. The test would not apply to certain categories of person, including babies under the age of 12 months, members of the armed forces and asylum seekers, or certain categories of case, including some (but not all) cases involving victims of human trafficking, domestic violence and forced marriage.

Last month, the proposed measure was denounced by the Parliamentary Joint Committee on Human Rights (JCHR), which concluded that the residence test would breach the United Nations Convention on the Rights of the Child. Dr Hywel Francis MP, chair of the JCHR, said that the government should withdraw the proposed legislation immediately.

The Administrative Court evidently agreed with the conclusion reached by the JCHR. Although the court has yet to decide what relief it will grant, the Public Law Project will contend that it should declare that the draft secondary legislation will have no effect if the government seek to proceed to introduce the residence test despite the clear judgment of the court.

The Ministry of Justice has announced that it will seek permission to appeal against the judgment. However, given the legal clarity and moral force of the court’s verdict, the prospects of the government obtaining a different outcome in the Court of Appeal or Supreme Court must be remote.

Discriminatory and unlawful
If the government does not succeed in an appeal, it could in theory attempt to circumvent the disapproval of the court and implement the residence test through primary legislation. Any such legislation would, however, be vulnerable to a further challenge following the court’s emphatic and unambiguous judgment that ‘residence is not a lawful ground for discriminating between those who would otherwise be eligible for legal assistance’.

The Secretary of State for Justice has previously expressed concern that the court system is ‘becoming mired in large numbers of applications, many of which are weak or ill-founded, and they are taking up large amounts of judicial time’. Grayling has also accused pressure groups of exploiting judicial review to ‘force the Government to change its mind over properly taken decisions by democratically elected politicians’.

The judgment of the Administrative Court is compelling in its clarity. It seems almost inconceivable that the decision will be overturned on appeal. Grayling might do well to carefully consider the legal advice he receives before wasting further judicial time by persevering with an ill-founded and meritless appeal to preserve the discriminatory and unlawful residence test.

About Oliver CarterOliver Carter is a solicitor at Irwin Mitchell and co-chair of Young Legal Aid Lawyers